et ale .". ST.
REMOVAL' OF CAUAES-CITIZENSHIP-INTERVENORs-REi'LEVIN.
An action of replevin between citizens of the same state is not removable to the federal courts by reason of the non-residence of one from whom defendant purchased the property, and who intervenes to protect the defend· anVs title.
2. SAME-REMAND-WAIVER OF RIGHT-LACHES.
Where the question is as to the right of removal from a state to a federal court,and not as to mere defects in the proceedings for removal, lapiie of time and the taking of preliminary proceedings after removal are not a waiver of the right to a remand.
Motion to Remand. Mar8h& SearleB, for plaintiffs. Warner & Lawre:nce, for defendant.
BREWER, J. This is a motion to remand. The, facts are as follows:, Plaintiffs, citizens of the stll.teof Minnesota, claiming to be the ownets of some logs; commenced this action of replevin against' the St. Croix Lumber Company, also a citizen of the state of Minnesota, the party in whose possession the logs were. ,Service was made and issue joined. Tllereafter, by leave of court" a defendant by the name of Wing intervened. He had sold the logs to the St. Croix Lumber Company, and was notified by that company to defend the suit. In pursuance of this notice, and by leave of court, ha intervened, setting up his original title,and that he was, a citizen, of the state of Wisconsin. Upon his petition, after the filing of a bond, the C1tS6 was transferred to this court; aDd nowp1aintift's 'ttlOveto remand it, on the ground that there is no separable controversy. 1'be gist of the action of replevin 'is the possession of the property, and the aotion lies against the party in possession. In this case, the party claiming to be theowner and in possession were both of the state of Minnesota; and as between them, of course, it is a100al action, and not removable. Wing, the intervenor, ,claims nothing independent of the origihal plaintiff' and defendant; asserts no rightsantagonistic to those of the defendant. He simply says he was the vendor of the logs to the original defendant, and is here to protect him in his possession. Whatever doubts may have exis.ted in times past, it is now settled that such a case as this presents no separable controversy. In the case of Wilson v. Railway Co., which was decided in the circuit court for the Eastern district of Missouri, and reported in 22 Fed. Rep. 3, the court said: "If a non-resident party has an interest in a controversy which is separate and distinct,and does not necessarilJ'involve tbe interest of the otber defendants in the issue, or the other party on the same side. he can remove the whole case into the federal courts. On the other hand, if the interests of the other parties are so identified, and so mixed up, that they must and should be con-
sidered together; and depend on the final decr.ee, which m1.1st df'plmd upon and of both parties, then itcllnnot beremovedwhe,re oneal the pl;lrties is a: citizen of thl! same state with the. plaintiff or This case was taken to the supreme court of 'the United States, and affirmed,inH4,U; S. 60,5 Ct. Rep. 738. So it is clear that this is a ease whieh. cannot be r.emoved into this c,ourt.' And although the casehas;beenhere a long time, and although ce,rtain prcliminary proceedings have been had in this court, the righttocballenge tion"and insist upon a remanoing of the case, is not waived. Of oourse. where there are mere defects in the proceedings for removal, such defects can be,,,,,aivedj but where the question is one of jurisdiction and as to the right qf removal, mere delay 61' action on preliminary matters do not to insist. upon the matter of jurisdiction. The motion to WIll sustained.
RUSHTON "'. THOMPSON
(Oircuit Oourt, D. Nebraska. June 80,1888.)
8PEOIFIO PERFORMANOE-CONTRACTS ENFORCEABLE-MISTAKE.
, ;Plaintiff made an offer to defendant's agent, with power to selt for cash, to buy land at a certain price, part cash. and the balance in short payments, on the makingofa perfect title., The agent telegraphed the offer to the owner, without stating as to title, and he replied. acceptmg it. The land was at the time leased for a year, and the owner had no patent therefor, but only a final receiver's certificate. having taken it up under the timber culture act, all of whi$;Was .known to defendant's agent. Plaintiff refused to accept the title, but tendered the cash payment according to his offer, and on its refusal deposited it in bank. Defendant's ageut also tendered back to plaintiff the check he had deposited as a forfeit when making his offer. and told him he need not take the land. Held, that there was an evident misunderstanding as to title. aild that the contract should equitably have been abandoned when it was first discovered; and the,fact of plaintiff's deposit in bank. and loss of the use of the money. does not ilJcrease his equities. and as the issue of the patent is indefinite. and greater loss and inconvenience would result to defendant from enforcing the contract than to plaintiff by its abandonment, specific performance will not be deCreed.! .
In Equity. Bill for specific performance. Batty &- <Jasto and Robert Ryan, for plaintiff. J. M. Ragan, and J. M. Woolworth, for defendants.
BREWER, J. This is a bill filed by the plaintiff to enforce the specific performance of a contract forthe sale of real estate. The facts are these: Defendant Edward Thompson in the summer of 1886 made final proof in the United States land-office, under the timber culture act, and rer.eived a final receiver's receipt. Thereafter he removed to California. One
lSPeotiio. performance of.a oontract will not be decreed, when for any reason. it would .be iIlequitable.See Eaton v. Eaton, (N. H.) 14 At!. Rep. 86'1', and cases cited in note;
flyare v. StUbbs, (Ala.) 4 South, Rep. 755, and note.